SUBJECT/S: High Court decision, Barnaby Joyce, Michaelia Cash controversy

BARRIE CASSIDY: Tony Burke, good morning.

TONY BURKE: Good morning.

CASSIDY: Now that we have a clear and precise decision from the High Court on citizenship, why shouldn't all politicians now be exposed to an audit, according to those rules?

BURKE: Well, for all the talk of the Government, all that the High Court has said is the decision and the view that they've had of the constitution for 25 years is still their view. So I think it's no accident that neither the Liberal Party nor the Labor Party got caught up in this, because as the larger parties, they already had the processes in place to be able to thoroughly check through the current law. And I think after all this, you can probably reasonably suspect that the minor parties will start doing the same.

CASSIDY: But if you're so confident that you got it right, why not have a full audit? If you've got nothing to fear?

BURKE: As we've said the whole way through this, we're not in favour of having this reverse onus of proof, and you know, we had had that ridiculous spectacle in question time a few weeks ago of Malcolm Turnbull devoting most of a Question Time on the Monday to trying to claim that Bill Shorten needs to produce his documents, and Bill Shorten stood up at the end of Question Time and said, can we stop with these ‘Bertha movements’** style of argument, held up the exact documents and said at that point, Malcolm Turnbull realised that the major parties do something different to the minor parties. We've been checking this before people nominate rather than halfway into their term.

CASSIDY: The lawyer who first turned up the problem with Scott Ludlum, he has said that he feels that there are others in the Parliament who are yet to be exposed?

BURKE: Well, he can say that but I can only speak for the Labor Party systems, but I think it's no accident that the Liberal Party is in a similar situation. But can I also just say, because I know the natural instinct is - let's move on to what's next. I do think that we’ve got to take a moment and look at what's happened for the last two and a half months. Because it's one thing for a member of parliament to be reckless and not to have checked, it's another thing all together to have had a member of parliament and the Deputy Prime Minister, who thought he was breaking the law, and didn't care. And kept making decisions anyway, and kept voting anyway. And that's the exact thing that has now been confirmed by the High Court, simply determining that the law of the last 25 years is still the law.

CASSIDY: The Prime Minister has now referred that decision to a parliamentary committee on electoral matters, but what could really come of that? It would be a big ask wouldn’t it? To go to the public with a referendum to change the law when the public is likely to say - no, just comply with the law?

BURKE: Well, we'll see what that inquiry comes back with. But can I put it in these terms? It would be outrageous if we went to the Australian people in a referendum to try to get help to make life easier for politicians on a decision that came out the same day that it became clear the Government was going to reject the requests for constitutional reform from the first Australians. I mean, to have a situation where the Government decides - oh, that cause isn't popular enough, and then to think that making life easier for politicians would be popular enough? I can't see them going there. And if they do, I can imagine how loud the response would be from the Australian people.

CASSIDY: What about the legal doubts now around the decisions, the legislation? You've already raised that. Because these MPs were disqualified in the first place. Is Labor going to take the lead on that, or do you leave that to others?

BURKE: There'll be a series of decisions that Barnaby Joyce has taken that we actually agreed with. So you can't imagine us challenging some of those decisions if we agree with them but there will be vested interests if you have an interest in doing that. When you're in charge of Australia's quarantine service, there's importers and exporters who make or lose money depending on decisions you make. There'll be a series of decisions there with vested interests, now combing through, and there being a whole lot of legal doubt over those decisions on the simple basis that Barnaby Joyce didn't do what Matt Canavan did. Matt Canavan turned out to have been legally in parliament. But at least took the precaution to step aside so that there was no risk to there being illegitimacy to his decisions. Barnaby Joyce and Malcolm Turnbull decided - oh, no, nothing to see here, let's just ignore the last 25 years of how the High Court's ruled on this and pretend that it's all going to be different this time. I think there's a reason why they never revealed the Solicitor-General's advice. I don't believe for a minute it was as strong as they were claiming.

CASSIDY: Given that Barnaby Joyce, and I think people on your side have virtually conceded this that he will be re-elected in New England, where's the crisis?

BURKE: The first thing is what we've seen is a Government with a born to rule attitude that is willing to govern even when, according to Australia's constitution, it's unlawful to do so.

CASSIDY: Well, they had advice from the Solicitor-General on that and they acted on it.

BURKE: Well, they haven't released that advice. They haven't released that advice. We had the Prime Minister of Australia declaring, arrogantly, that he knew what the High Court would so hold. And he does it with a smooth voice, with a born to rule confidence, but once again, he was completely wrong. It goes to his judgement. But it also goes to a Government that is willing to take this sort of risk. The one place they weren't willing to take the risk was whether or not they'd pull the gas trigger - something that would put downward pressure on gas prices for ordinary Australian households. They would prefer to leave the risk on the side of Australian households than to have taken any concession on the job of Barnaby Joyce.

CASSIDY: Are you going to take advantage of the Government's temporary vulnerability and try and get a Royal Commission into the banks through the parliament?

BURKE: Well, the vulnerability of the Government is hardly temporary. I've heard people say they've lost their working majority. The majority hasn't been working for them whole term. It was only day three before they lost the numbers on the floor and a few weeks after that, one of the ones who had gone home early, Michael Keenan was the minister at the table when the Government voted to condemn itself accidently. They've hardly had a working majority anyway. But what we will do is exactly what we’ve done the whole term which is to pursue our agenda. And the Government is at 74. If all the crossbench vote with us, we're at 74 too.

CASSIDY: The Government's at 75 if you include the speaker, who is a Liberal.

BURKE: Yeah, but the speaker is not a vote on the floor. Not of a vote on the floor. And it's not like I agree with the Speaker every day on the floor of the chamber, but when it comes to the use of the casting vote, Tony Smith has absolutely kept a precedent and has not used that as a Government vote. It's not a Government vote. The moment the Government decided they wanted one of their own to be Speaker, their numbers on the floor of the house went to 74.

CASSIDY: During the week, Cathy McGowan, the independent, and Rebekha Sharkie, they did not support your efforts to sack Michaelia Cash in the parliament. Does that not suggest to you that they won't be a part of any mischief making either on that part?

BURKE: As I say, we'll be pursuing our agenda. They did vote with us when we were saying that Barnaby Joyce needed to stand aside. Every member of the crossbench voted with us on that. They did vote with us when we had the votes on whether or not there should be a banking Royal Commission. And all but one of them voted with us when we were trying to save 700,000 people from losing the penalty rates that they would otherwise be earning today, right this day. Now, each of those decisions, the Government was able to have its way by one vote. And we now know that vote wasn't even lawful.

CASSIDY: Just finally on Michaelia Cash, she asked the right questions of her Press Secretary. He misled her. So why then should she be then held responsible?

BURKE: I just don't think that we can accept the account that's been put to us by the Government on this. The Prime Minister claims, take the Prime Minister's version of events. The only allegation that was out there was that Michaelia Cash's office had tipped off the media so that the media arrived before the police did. That was the only allegation that her office had done that. Michaelia Cash goes to Malcolm Turnbull and says - oh, I never tipped off the media. And we're meant to believe that the Prime Minister, a trained cross-examiner, never asked the question, "Yeah, but there's no allegation about you, what about your office?" And the members of her office, who were responsible, were standing there in the room with her. This doesn't stack up. I don't think the Government's fooling anyone on this.

CASSIDY: Right, Tony Burke we'll have to leave it there. We have a big morning. Thank you very much.

BURKE: Good to be back.

Tony Burke